majority">Kussell, C. J.

The plaintiff in error was convicted of robbery. The main witness for the State, and the only witness who testified *681to the more material allegations of the indictment, was a boy nine years of age. On motion of counsel for the accused this youth was subjected to an examination touching his capacity as a witness. On the conclusion of this examination the court remarked, “I will leave it to the jury whether he is competent or, not,” and allowed the witness to proceed to testify. This act of the court in so allowing the testimony of the witness is attacked as erroneous.

While it is true that the competency of a witness to testify is a question for the court (Civil Code, § 5856), we find no error in the remark complained of, or in the charge of the court. It is not insisted that the judge could not, or did not, within his own breast, consider the capacity of the witness fully up to the standard required by law. The mere fact that he did not expressly declare the witness to be competent or incompetent does not in any wise tend to show that the court did not consider the witness competent. Indeed, the very act of the court in allowing the witness to testify at all after he had been examined as to his competency negatives the idea that the court held the witness to be incompetent. We are constrained to believe that the judge, wise and learned as he is, in making the remark above quoted, merely had in mind the sound legal maxim that “The object of all legal investigation is the discovery of truth.” In permitting the witness to testify at all, the court exercised its discretion, and adjudged prima facie that the child was a Competent witness. In making the remark of which complaint is made the judge perhaps had in mind and expressed the truth that, after all, the capability, competency, credibility and veracity of the youthful witness would necessarily have to be passed upon by the jury trying the defendant and who were the final judges of both the law and the facts. As was said by this same able judge when a member of this court, in Webb v. State, 7 Ga. App. 35 (66 S. E. 27), in a case similar to this, in which the competency of a girl eight years of age was questioned, “At least the jury, who saw the child and heard the answers to the questions relating to her competency, were the judges of whether her testimony was entitled to credit.” The Supreme Court, in Young v. State, 122 Ga. 725 (50 S. E. 996), a similar case, held that “while the judge may have been satisfied prima facie that she was competent, the jury at last were the judges of whether they would credit her testimony or not.” The judge in the present instance must of *682necessity have been satisfied prima facie that the witness was competent, else he would not have allowed the witness to testify. It is not insisted that the judge -erred in his conclusions as to the competency of the witness, and, indeed, if it were so insisted, we would be constrained to hold that he did not abuse his discretion in holding the witness competent to testify, for there must appear a very flagrant abuse of discretion in such cases to authorize this court to interfere. Peterson v. State, 47 Ga. 524; Young v. State, supra. No such abuse appears in this case.

2. It is insisted in the second ground of the amendment to the motion for a new trial that the court erred in giving in charge to the jury the law relative to the capability of witnesses to testify, and in charging them that they might take into consideration, in arriving at their verdict, whether the witness in question was a competent and capable witness. The court went fully into this matter, and we are unable to see wherein the defendant has any right to complain thereat. Such instructions could not possibly have done the defendant harm. It is for the jury in every case to pass upon the credibility of witnesses, but the court went a step further than the law required and also gave the defendant the benefit of having the jury say that the court might have misjudged the capacity of the witness to testify. The fact that the judge, in his effort to accord to one charged with crime every essential of a fair and impartial trial, allowed the jury also to pass upon matters of fact already rightly adjudged by him upon an investigation as to the prima facie competency of a witness, and especially when a conclusion of the issue of competency by the jury different from that reached by the judge could not possibly do the defendant harm, but might, on the contrary, inure to his benefit, should, in our opinion, afford the defendant no cause for complaint.

S. The verdict was fully supported by the evidence and there was no error in refusing a new trial. Judgment affirmed.

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